Opinion
NO. 4-16-0313
04-28-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBY GUNN, Defendant-Appellant.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of McLean County
No. 12CF750
Honorable Robert L. Freitag, Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices Appleton and Pope concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed, concluding (1) it lacked jurisdiction to address the trial court's ruling on May 2016 filings where the notice of appeal predated the trial court order and was directed at the court's April 2016 judgment, and (2) defendant forfeited issues not briefed as to the April 2016 order.
¶ 2 On April 25, 2016, on remand from this court, defendant, Bobby Gunn, through his counsel, filed an "amended motion to withdraw guilty plea," raising only the claim that his sentence was excessive. Following a hearing that same day, the trial court denied the motion. On April 29, 2016, the circuit clerk filed a notice of appeal, identifying the April 25, 2016, judgment as the order being appealed. Thereafter, defendant pro se filed (1) a motion to amend the notice of appeal, specifically identifying the April 25, 2016, judgment as a denial of a motion to reconsider his sentence; and (2) a motion to withdraw his guilty plea and vacate his sentence, alleging he received inadequate representation because counsel on remand (a) failed to consult
with defendant, (b) refused to "look at withdraw plea," and (c) did not raise "excessive claim." On May 31, 2016, the court struck defendant's pro se motions because those issues were "already being appealed."
¶ 3 Defendant appeals, arguing the trial court erred by striking defendant's pro se petition to withdraw his guilty plea and vacate his sentence. Specifically, defendant argues the court should have held a preliminary inquiry pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), to determine whether defendant should have had new counsel to represent him at the posttrial hearing regarding his original pro se motion to withdraw his guilty plea and vacate his sentence. We affirm.
¶ 4 I. BACKGROUND
¶ 5 A. Matters Regarding Defendant's Initial Appeal
¶ 6 We set forth the circumstances of defendant's guilty plea and sentencing in People v. Gunn, 2015 IL App (4th) 130963-U, and will only summarize the facts necessary for the resolution of the instant appeal.
¶ 7 In July 2013, following his guilty plea and sentencing on one count of unlawful delivery of a controlled substance within 1,000 feet of a church (720 ILCS 570/407(b)(2) (West 2010)), defendant filed a pro se motion to withdraw his guilty plea and vacate his sentence. That motion alleged trial counsel, David Rumley, provided "inadequate representation" by failing to convey a six-year plea offer. The motion also requested his 11-year sentence be vacated and a "more constitutional sentence" of 6 years be imposed.
¶ 8 In September 2013, appointed counsel, Brian McEldowney, consulted defendant, sought to withdraw the guilty plea, and requested leave to file a motion to reconsider the sentence. The trial court denied leave to file the motion to reconsider the sentence as untimely
and denied the motion to withdraw the guilty plea. Defendant appealed, and this court affirmed the denial of the motion to withdraw the guilty plea because defendant could not show trial counsel's representation fell below an objective standard of reasonableness under the first prong of Strickland v. Washington, 466 U.S. 668 (1984). Gunn, 2015 IL App (4th) 130963-U, ¶ 29.
¶ 9 As to the motion to reconsider defendant's sentence, this court determined the trial court, in denying leave to file the motion as untimely, construed defendant's pro se motion too narrowly. Id. ¶ 38. We concluded the court should have construed liberally defendant's request for a "more constitutional" sentence and allowed counsel to amend defendant's motion to include a request to reconsider the sentence in keeping with the purpose of Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). Gunn, 2015 IL App (4th) 130963-U, ¶ 38. Accordingly, we remanded " 'for (1) the filing of a new Rule 604(d) certificate; (2) the opportunity to file a new motion to withdraw the guilty plea and/or reconsider the sentence, if counsel concludes that a new motion is necessary; and (3) a new motion hearing.' " Id. ¶ 39 (quoting People v. Lindsay, 239 Ill. 2d 522, 531, 942 N.E.2d 1268, 1274 (2011)).
¶ 10 B. Remand
¶ 11 During a December 2015 status hearing, McEldowney indicated to the trial court he and defendant had a misunderstanding regarding the meaning of this court's mandate and would discuss the matter further in an additional conference. Accordingly, McEldowney asked to set the matter for hearing and further stated, "if the [c]ourt could give me leave to file additional motions, give me a little bit of time so I can set up a phone conference with [defendant] and make sure I've exhausted all of the issues that he has, then I would, I would do that." The court granted leave to file additional motions and set the matter for hearing.
¶ 12 On April 25, 2016, McEldowney filed an "amended motion to withdraw guilty plea," raising only the claim that defendant's sentence was excessive. Following a hearing that same day, the trial court noted the amended motion's title but indicated it would treat the motion as a motion to reconsider the sentence, given that it sought to reduce the sentence and argued the sentence was excessive. McEldowney also sought to clarify the record, saying:
"I do want the record to be clear that I have considered the possibility originally of re-litigation, rearguing that motion to withdraw guilty plea, and I understand the Appellate mandate, the court's decision to deny relief on that motion was affirmed. And that is the reason I did not argue the original grounds of that motion which had to do with miscommunications and failure of his counsel [(Rumley)] to communicate plea offer [sic]. As I understand that, the court's ruling on that matter *** was upheld. So I have limited my arguments to a motion to reconsider sentence."
The court indicated it shared McEldowney's understanding and then denied the motion to reconsider the sentence. Defendant immediately asked the court to direct the clerk to prepare and file a notice of appeal.
¶ 13 On April 29, 2016, at defendant's request, the circuit clerk filed a notice of appeal, identifying the April 25, 2016, judgment and identified the nature of the order appealed from as a "denial of amended motion to withdraw guilty plea." On May 23, 2016, the office of the State Appellate Defender filed an amended notice of appeal identifying the nature of the order appealed as "Conviction, sentence[,] and denial of post-plea motion."
¶ 14 On May 18, 2016, defendant placed in the prison mail system a pro se motion to amend the notice of appeal, stating the original notice incorrectly identified the nature of the order and requesting the notice be corrected to identify the nature of the order appealed as a "Motion to reconsider sentence that was denied on April 25, 2016." Also on May 18, 2016, defendant placed into the prison mail system a pro se petition to withdraw guilty plea and vacate sentence, alleging he received inadequate representation on remand because McEldowney (1) failed to consult with defendant, (2) refused to "look at withdraw plea," and (3) did not raise "excessive claim." The pro se motion to amend the notice of appeal and the pro se petition alleging inadequate representation were filed on May 27, 2016. On May 31, 2016, the trial court entered a docket entry noting defendant's postplea motion was denied on April 25, 2016, and struck defendant's pro se motion to amend the notice of appeal and petition to withdraw the guilty plea and vacate the sentence because those issues were "already being appealed."
¶ 15 This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, defendant argues the trial court erred on May 31, 2016, by striking his petition to withdraw his guilty plea and vacate his sentence. Specifically, defendant argues the court should have conducted a preliminary inquiry into defendant's allegations of McEldowney's ineffective representation under Krankel, pursuant to the claims in his May 27, 2016, pro se petition to withdraw his guilty plea and vacate his sentence.
¶ 18 A. Jurisdiction
¶ 19 Before we can address the merits of defendant's argument on appeal, we must address a potential jurisdictional defect. "Although neither party has addressed our jurisdiction
to consider the issue, a reviewing court has an independent duty to ascertain its jurisdiction." People v. Shaw, 2016 IL App (4th) 150444, ¶ 55, 52 N.E.3d 728.
¶ 20 As indicated, the record contains the following documents relevant to providing notice of appeal: (1) a notice of appeal filed by the circuit clerk on April 29, 2016, which indicated an appeal from the judgment entered on April 25, 2016, and listed the nature of the appeal as "denial of amended motion to withdraw guilty plea"; (2) an amended notice of appeal (by defendant's appellate counsel) filed on May 23, 2016, which indicated an appeal from the judgment entered on April 25, 2016, and listed the nature of the appeal as "Conviction, sentence[,] and denial of post-plea motion"; and (3) a pro se amended notice of appeal filed on May 27, 2016, which indicated an appeal from the judgment entered on April 25, 2016, and listed the nature of the appeal as "Motion to reconsider sentence that was denied on April 25, 2016." Obviously, none of these include any indication that defendant was asserting error regarding his pro se petition to vacate his guilty plea, which was filed on May 27, 2016, and stricken by the trial court on May 31, 2016. Moreover, there have been no attempts to amend the notice following the trial court's May 31, 2016, order.
¶ 21 Although notices of appeal are jurisdictional, "it is generally accepted that such a notice is to be construed liberally." People v. Smith, 228 Ill. 2d 95, 104, 885 N.E.2d 1053, 1058 (2008). Notices of appeal " 'should be considered as a whole and will be deemed sufficient to confer jurisdiction on an appellate court when it fairly and adequately sets out the judgment complained of and the relief sought, thus advising the successful litigant of the nature of the appeal.' " Id. at 105, 885 N.E.2d at 1058-59 (quoting Lang v. Consumers Insurance Service, Inc., 222 Ill. App. 3d 226, 229, 583 N.E.2d 1147, 1150 (1991)). Where the deficiency is one of form,
and not one of substance, failure to strictly comply with the form of the notice is not fatal. Id. at 105, 885 N.E.2d at 1059.
¶ 22 In Smith, the supreme court identified a potential jurisdictional issue where the notice of appeal identified the circuit court's judgment of conviction on November 10, 2004, but the defendant sought to appeal the court's order denying his motion for sentence correction on February 21, 2006. Id. at 103, 885 N.E.2d at 1058. The court held this deficiency appeared to deprive the appellate court of jurisdiction, stating as follows:
"Defendant's notice of appeal, no matter how liberally construed, cannot be said to have fairly and adequately set out the judgment complained of—the court's order of February 21, 2006—or the relief sought. The notice not only failed to mention the February 21, 2006, order; it specifically mentioned a different judgment, and only that judgment. This was more than a mere defect in form. Defendant's notice failed to apprise the State of the nature of the appeal. The notice, as it appears in the record, failed to confer jurisdiction on the appellate court to hear defendant's appeal." Id. at 105, 885 N.E.2d at 1059.
The supreme court remanded for the appellate court to determine whether the defendant had amended his notice of appeal to cure the jurisdictional defect. Id. at 105-06, 885 N.E.2d at 1059. Although the Smith court cited Illinois Supreme Court Rule 303 (eff. Jan. 1, 2015), the supreme court has also considered the reasoning from Smith in cases involving the form of notice of appeal provided in Rule 604(d). See People v. Gutierrez, 2012 IL 111590, 962 N.E.2d 437.
¶ 23 In Gutierrez, the State argued the appellate court lacked jurisdiction to review the defendant's appeal regarding the assessment of fines and fees. Id. ¶ 8. The defendant filed two notices of appeal: (1) the first notice of appeal indicated the defendant appealed the denial of his motion to reconsider his sentence but listed the date of the judgment as August 1, 2008, which was the date of sentencing; and (2) the amended notice of appeal listed the judgment date as December 23, 2008, which was the date the court's final judgment was entered. Id. The amended notice of appeal "omitted the section where a defendant can identify if he is appealing from anything other than his conviction." Id. ¶ 10. Neither notice of appeal listed the assessment of any fines or fees. Id. ¶ 8. The supreme court concluded the notice of appeal was sufficient to confer jurisdiction on the appellate court where the notice of appeal clearly indicated the defendant was appealing the court's final judgment and the fee he sought to appeal was imposed the date defendant was sentenced. Id. ¶ 12.
¶ 24 The instant case is more akin to Smith than Gutierrez. Defendant's amended notice of appeal, filed on May 23, 2016, indicated an appeal from the judgment entered on April 25, 2016, and listed the nature of the appeal as "Conviction, sentence[,] and denial of post-plea motion." Although defendant placed the petition to withdraw his guilty plea in the prison's institutional mail system on May 18, 2016, no one learned of its existence until it was filed on May 27, 2016, and the trial court took no action on the petition until May 31, 2016. Even liberally construed, we conclude a notice of appeal filed before the complained-of action by the trial court cannot confer jurisdiction on the appellate court over that later action. It simply cannot identify an action the court had yet to take and that defense counsel on appeal had no reason to anticipate. Therefore, we conclude defendant's notice of appeal, amended on May 23, 2016, failed to adequately identify the May 31, 2016, docket entry striking defendant's petition.
We further note defendant did not file a notice of appeal following the May 31, 2016, docket entry. Accordingly, we conclude the notice of appeal was insufficient to confer jurisdiction on this court regarding defendant's claims related to the pro se petition to withdraw his guilty plea filed on May 27, 2016. Cf. People v. Jake, 2011 IL App (4th) 090779, ¶ 24, 960 N.E.2d 45.
¶ 25 We note defendant is not without recourse to pursue his claims of ineffective assistance of counsel on remand. Defendant is free to file a postconviction petition raising his claims. 725 ILCS 5/122-1 to 122-7 (West 2014). Indeed, a postconviction petition is the preferred way to raise such claims. See People v. Ligon, 239 Ill. 2d 94, 105, 940 N.E.2d 1067, 1074 (2010) ("[W]here, as here, the record is insufficient because it has not been precisely developed for the object of litigating a specific claim of ineffectiveness raised in the circuit court, thereby not allowing both sides to have an opportunity to present evidence thereon, such a claim should be brought on collateral review rather than on direct appeal.").
¶ 26 B. Excessive Sentence
¶ 27 While we lack jurisdiction to consider the actions taken by the trial court on May 31, 2016, we do have jurisdiction to consider the court's April 25, 2016, judgment. We initially remanded this matter to the trial court for counsel to file a motion to reconsider the sentence that we concluded defendant included in his original pro se posttrial motion. Counsel did so, and, after a hearing, the court denied the motion to reconsider the sentence. Defendant's notice of appeal clearly indicates he sought appellate review of the order denying the motion to reconsider his sentence. However, defendant makes no argument regarding the court's ruling in that regard. Accordingly, we conclude defendant has forfeited this argument.
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we affirm the trial court's April 25, 2016, judgment. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002 (West 2014).
¶ 30 Affirmed.